In December 1952, African-American lawyer Thurgood Marshall appeared before the Supreme Court representing a seven-year-old black girl from Topeka, Kansas named Linda Brown who had to ride the bus to her segregated black school instead of walking to the neighborhood school. Marshall and other NAACP Legal Defense Fund lawyers were there for three days of oral arguments in five consolidated cases dealing with segregated schools. Three hundred spectators packed the hearing room while four hundred anxiously waited in the corridors.

In postwar America, approximately 11.5 million students attended segregated schools that kept whites and blacks apart. Segregated schools were an essential anchor in the Jim Crow system of segregation and denied equal opportunity to African Americans. The Supreme Court had decided that “separate, but equal” segregated facilities were constitutional in Plessy v. Ferguson (1896).

The NAACP initially focused on desegregating higher education. In Sweatt v. Painter (1950) and McLaurin v. Oklahoma State Regents (1950), the Court ruled that separate facilities for African-American students in law school and graduate school were unequal. Marshall and the Legal Defense Fund then decided to challenge segregation in elementary and secondary education.

In 1951, the NAACP and several courageous African Americans brought suit against segregated schools. Blacks who took a stand were physically intimidated, lost their jobs, and lost their homes. In Clarendon County, South Carolina, twenty plaintiffs sued in Briggs v. Elliott that the black and white schools had massive discrepancies in spending and facilities.

In Prince Edward County, Virginia, a sixteen-year-old junior named Barbara Johns organized a student strike of 450 students protesting segregation. The resulting case was Davis v. County School of Prince Edward County. Gebhart v. Bulah was filed in Delaware where a white mother, Sarah Bulah, drove her adopted black daughter to a one-room school house because she could not ride the school bus that stopped in front of her house for the white school.

In Washington, D.C., black parents boycotted the schools in 1948, and the NAACP filed a suit on behalf of a twelve-year-old student, Spottswood Bolling, Jr., who went to a vastly inferior segregated school. Bolling v. Sharpe was a unique case because the Fourteenth Amendment only applied to the states, not the District of Columbia. The lawyers had to argue the case on the grounds of the Due Process Clause of the Fifth Amendment.

The five cases would eventually be consolidated under Brown v. Board of Education. The NAACP lawyers altered their goal from equalizing separate white and black schools to desegregating schools to attack the foundation of segregation itself.

Thurgood Marshall presented these arguments when he faced off against John W. Davis, former congressman, solicitor general, and 1924 Democratic presidential candidate, representing South Carolina in oral arguments before the Supreme Court. Marshall argued that segregation violated the Equal Protection Clause of the Fourteenth Amendment, which read, “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” Davis countered that the Fourteenth Amendment was obscure when it came to segregation especially in schools. He pointed out that both the Freedmen’s Bureau and the nation’s capital had segregated schools at the time the Amendment was ratified during Reconstruction. Moreover, the Supreme Court itself made Plessy v. Ferguson the law of the land for the previous six decades.

The Court was deeply divided over the decision, and several justices had great doubts about Marshall’s arguments. Some thought the southern legislatures could equalize the schools under Plessy; others accepted the uncertain protections of the Fourteenth Amendment. Some justices wanted to exercise judicial restraint and wanted to defer to the state legislatures on the issue of segregation and schools. All were concerned about how desegregating the schools would be received and how it would be implemented. The best majority the Court could muster at this point would be 5 to 4, maybe 6 to 3, in favor of desegregating.

In June 1953, the Court was so unsure that the justices ordered the case to be reargued later that year in December. In September, Chief Justice Vinson died. President Eisenhower appointed governor of California, Earl Warren, to the bench as Chief Justice. The hearings lasted three days again, and the extended conference negotiations began a few days later. The new Chief Justice saw Brown as a moral issue and tried to build a consensus for a unanimous opinion because it would have greater authority in face of the anticipated backlash. However, the justices were still divided over the constitutional issues for months. On May 15, 1954, the Court was unanimous on the consolidated Brown case.

Two days later, Chief Justice Warren read the unanimous opinion in Brown v. Board of Education. While the outcome of the case was a landmark advance in the struggle for black equality and civil rights, the opinion rested on curious and even shaky grounds. First, the Court admitted that it was unsure whether the Fourteenth Amendment applied to segregated schools. The arguments were “inconclusive” and “cannot be determined with any degree of certainty.”

Second, the Court made the shocking claim that the black schools were equal to white schools and therefore met the “separate but equal” standard established by Plessy. The black and white “schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other ‘tangible’ factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.”

The Court instead based the decision on the argument that to separate them “solely because of their race generates a feeling of inferiority.” Rather than the Constitution, the decision hinged upon social science findings related to doll studies. The Court argued that the studies showed that black children played more with white dolls than black dolls because they felt inferior. However, the studies actually showed the opposite—that black children preferred dolls of their own race especially in the segregated South. The study only studied sixteen southern children who were just six to nine years old and thus less likely than older children to have suffered the ill effects of segregated schools. In short, the Court’s decision rested on perilous social science findings.

Finally, the Court asserted that, “Separate educational facilities are inherently unequal.” Therefore, the plaintiffs were “deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.” One year later, Brown II dealt with implementation of the desegregation of public schools across the country, which included millions of students and dollars. It asserted, somewhat vaguely, that schools had to desegregate with “all deliberate speed.”

Some Southerners engaged in a “massive resistance” campaign in which they refused to follow the decisions. Some public schools closed rather than desegregating and many whites fled to private academies. Nevertheless, desegregation in southern schools enjoyed slow but steady growth in the coming years. Brown helped to stimulate the Civil Rights Movement culminating in the Civil Rights Act (1964) banning segregation in all public facilities, and the Voting Rights Act (1965), which outlawed racially discriminatory voting restrictions. But, the case had a more complicated history, and the opinion rested on more curious grounds, than we normally think.

Cooper v Aaron is noted here as a reference but does not appear to be explained directly (but is a related case of desegregation in Arkansas); but if I recall and understand it right, Cooper V Aaron is where the forced busing issue came from due to the introduction of the first time of SCOTUS memorializing the “Supreme Law of the Land” doctrine.

We are falsely told that Marbury v. Madison (1803) determined that SCOTUS to be the “final arbiter of the law” via the Supremacy Clause. Though Marbury v Madison is the precursor source of that doctrine that did not start to take root until the 1830s, it would not be until Cooper v Aaron some 155 years later where SCOTUS finally adopted such a doctrine. So it took from the first session of SCOTUS in 1790 to discover a new power a whole 165 years to “get it right”. The premise of the Marbury v Madison decision was rather that SCOTUS had power to interpret the constitution just like any other officer who is sworn into office to uphold the constitution of the US, NOT despite any other federal office.

I have never seen the particulars of Brown v. Education. I am astounded at the weak opinion of such a critical case. The arguments almost demanded that separate but equal be ruled legally, constitutionally just and justifiable.

My thoughts in such matters is to push the argument to the extreme a determine whether we still believe it to be valid. In this case, lets push Separate, but Equal [SbE] to its limits and see if we think it does or does not violate natural law, that all men are created equal.

Suppose the “people” or Gov’t decided to apply SbE to Chinese [late 1800s], and build them segregated schools, is that still equal? What about immigrants from Southeast Asia [1970s/80s]? Native Americans? Japanese? How about segregated Irish schools? Still equal? German schools? Polish? Segregated Public [not private] schools according to the wealth of their families. Political affiliation? Religious beliefs? Will those who believe SbE does not violate our natural rights still believe if THEY are the ones being segregated?

Then there is the problem of selfish interest. Jonathan Edwards instructed us that free will is always choosing that which we think is in our best interest. Facing someone with a gun who demands, “your wallet or your life,” most of us quickly hand over our wallet because it is in our best interest to do so. An practicing alcoholic chooses “AL” because they mistakenly think it is best for them. Jason Bourne has skills that enables him to disarm the assailant and kick his …. Perhaps that is why we like those characters, they have an expanded free will. Because of free will we should expect those doing the segregating will always appropriate funds, facilities, teacher:student ratios, etc. in their favor. It is in their best interest to give their children an advantage, over other children.